Weatherbed v. State

• Decision Date: 22 November 1999
• Docket Number: No. S99A1222.,S99A1222.
• Citation: 271 Ga. 736,524 S.E.2d 452
• Parties: WEATHERBED v. The STATE.
• Court: Georgia Supreme Court

524 S.E.2d 452

271 Ga. 736

WEATHERBED v. The STATE.

No. S99A1222.

Supreme Court of Georgia.

November 22, 1999.

Craig L. Cascio, Alpharetta, for appellant.

John C. Pridgen, District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, H. Maddox Kilgore, Assistant Attorney General, for appellee.

HINES, Justice.

Weatherbed appeals the trial court's denial of his motion for an out-of-time appeal. For the reasons which follow, we reverse.

On October 20, 1995, Weatherbed pled guilty to an accusation for malice murder and was sentenced to life in prison. He was represented by counsel and waived indictment in writing. On November 28, 1995, he filed a pro se "Motion for Extension to Appeal," which was denied. Through counsel, he filed a motion for an out-of-time appeal on August 13, 1998, asserting that his trial counsel was ineffective for not informing him of his right to appeal, and the court denied the motion.

"The judgment of a court having no jurisdiction of the person or subject matter, or void for any other cause, is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it." OCGA § 17-9-4. Because of the failure to indict Weatherbed, his conviction and sentence are void and must be reversed. OCGA § 17-7-70(a) provides:

In all felony cases, other than cases involving capital felonies, ... the district attorney shall have authority to prefer accusations, and such defendants shall be tried on such accusations, provided that defendants going to trial under such accusations shall, in writing, waive indictment by a grand jury.

OCGA § 17-7-70(b) states that:

Judges of the superior court may open their courts at any time without the presence of either a grand jury or a trial jury to receive and act upon pleas of guilty in misdemeanor cases and in felony cases, except those punishable by death or life imprisonment, when the judge and the defendant consent thereto. The judge may try the issues in such cases without a jury upon an accusation filed by the district attorney where the defendant has waived indictment and consented thereto in writing and counsel is present in court representing the defendant either by virtue of his employment or by appointment by the court.

Under the common law prior to the passage of OCGA § 17-7-70 and its predecessors, the superior court

had no jurisdiction to try, or accept a plea of guilty of one charged with a felony until the grand jury had returned an indictment. By [enactment of OCGA § 17-7-70] the court was given jurisdiction so to do in felony cases, but was expressly excluded therefrom as to those "punishable by death or life imprisonment."¹

Webb v. Henlery, 209 Ga. 447, 449, 74 S.E.2d 7 (1953) (overruled on other grounds, Garmon v. Johnson, 243 Ga. 855, 857, 257 S.E.2d 276 (1979)). After passage of the statute, the superior court remained without jurisdiction to dispose of a case involving a felony "punishable by death or life imprisonment" without an indictment, and when it does so, its judgment is void. Id.

Without an indictment, the trial court had no jurisdiction to accept Weatherbed's plea and sentence him. "When a trial court enters a judgment where it does not have jurisdiction, such judgment is a mere nullity; but an appeal from such an illegal judgment will not be dismissed but instead, the void judgment will be reversed. [Cits.]" Darden v. Ravan, 232 Ga. 756, 758(1), 208 S.E.2d 846 (1974). A void judgment may be attacked at any time, and this is not a situation in which the limitations on this rule might apply. See Bennett v. State, 268 Ga. 849, 850, 494 S.E.2d 330 (1998).

For the purposes of superior court jurisdiction under OCGA § 17-7-70, there is no distinction between "capital felonies" and felonies "punishable by death or life imprisonment"; they have the same meaning. In general parlance, malice murder is a capital felony. See Hayes v. State, 268 Ga. 809, 813(7), 493 S.E.2d 169 (1997). Whether a felony is punishable by death has also been considered to be the determining factor in deciding if a felony is a "capital felony" within the meaning of OCGA § 17-7-70 itself. Smith v. Wilson, 268 Ga. 38, 39(1), 485 S.E.2d 197 (1997). The State suggests that because it did not seek the death penalty against Weatherbed, he was not charged with a "capital felony" within the meaning of OCGA § 17-7-70. This Court has previously stated that

"[i]n our view the expression `capital felony,' when used in our law, is merely descriptive of those felonies to which the death penalty is affixed as a punishment under given circumstances to distinguish such felonies from that class in which under no circumstances would death ever be inflicted as a penalty for the violation of the same." [Cit.]

(Emphasis in original.) Collins v. State, 239 Ga. 400, 402(2), 236 S.E.2d 759 (1977). This is also the definition that has been used in examining the precursor to OCGA § 17-7-70. See Garmon, supra (deciding that armed robbery is not a "capital felony" within the meaning of the statute as the death penalty could no longer be imposed for this offense).

The fact that the State did not seek the death penalty does not take this case outside the ambit of OCGA § 17-7-70. Under the definition used in Collins, malice murder is a capital felony because it belongs to a class of case in which the death penalty can, under certain circumstances, be imposed. OCGA §§ 16-5-1(d); 17-10-30(b). See, e.g., Pruitt v. State, 270 Ga. 745, 514 S.E.2d 639 (1999). The fact that the State has chosen not to pursue the death penalty does not change the class of case to which it belongs. Further, such choice is not dispositive in any event; although the State did not seek the death penalty when Weatherbed was sentenced under the accusation, the death penalty could still be sought in this (or a similar) case, as the State is not necessarily precluded from seeking the death penalty should the defendant be indicted. See Griffin v. State, 266 Ga. 115, 119-120(3), 464 S.E.2d 371 (1995).

The State's argument that Weatherbed freely and voluntarily consented to the procedure and waived his right to indictment, even if true, is irrelevant. Parties cannot, by their consent, confer subject matter jurisdiction on a court that does not otherwise have it. Gray v. Gray, 229 Ga. 460, 461, 192 S.E.2d 334 (1972).

The case is returned to the superior court for proceedings consistent with this opinion.

Judgment reversed with direction.

All the Justices concur, except BENHAM, C.J., who concurs specially.

BENHAM, Chief Justice, concurring specially.

I am in full agreement with the majority opinion's holding that Weatherbed's guilty plea to murder could not be received by the trial court absent an indictment because OCGA § 17-7-70(b) does not permit the trial court to accept a guilty plea on an accusation charging a defendant with committing a felony that is "punishable by death or life imprisonment." I write separately because I believe the time has come for this Court to comply with the change in its appellate jurisdiction in non-capital murder cases brought about by passage of the 1983 Georgia Constitution, as recognized by this Court in State v. Thornton, 253 Ga. 524(1), 322 S.E.2d 711 (1984).

Prior to the enactment of the 1983 Constitution, the Supreme Court of Georgia was the appellate court with jurisdiction in "all cases of a conviction of a capital felony." 1976 Ga. Const., Art. VI, Sec. II, Par. IV. The 1983 Constitution expresses this Court's current appellate jurisdiction in criminal cases as follows: "All cases in which a sentence of death was imposed or could be imposed." 1983 Ga. Const., Art. VI, Sec. VI, Par. III(8). From the addition of new language, we presume that some change in the existing law was intended. Balest v. Simmons, 201 Ga.App. 605(1)(a), 411 S.E.2d 576 (1991). In State v. Thornton, supra, 253 Ga. 524(1), 322 S.E.2d 711, this Court recognized that the 1983 Constitution's grant to this Court of jurisdiction over "cases in which a sentence of death was imposed or could be imposed" does not embrace all murder cases, as the previous statement of jurisdiction had. See Collins v. State, 239 Ga. 400(2), 236 S.E.2d 759 (1977). In Thornton, the State appealed the trial court's order granting a murder defendant's motion to suppress evidence. The appeal was filed initially in the Court of Appeals, which transferred it to this Court on the ground that "a case wherein the defendant has been indicted for murder ... is a case `in which a sentence of death ... could be imposed.'" State v. Thornton, Case No. 68255, May 3, 1984 order. This Court disagreed with the Court of Appeals' jurisdictional rationale, finding that the appeal was properly filed in the Court of Appeals under the 1983 Constitution. This Court noted the effect of the then-recent change in appellate jurisdiction:

The district attorney did not give timely notice to the defense that the state intended to seek the death penalty, Unified Appeal, § II. A. 1., 246 Ga. at A-7, and for this reason this is not a case "in which a sentence of death was imposed or could be imposed." Constitution of Georgia of 1983, Art. VI, Sec. VI, Par. III(8). Hence, this appeal was properly filed in the Court of Appeals.

State v. Thornton, supra, 253 Ga. 524(1), 322 S.E.2d 711.

The Thornton court recognized that the 1983 Constitution did not give this Court appellate jurisdiction of an appeal wherein the defendant, though charged with murder, could not receive the death penalty. For policy reasons not identified in the opinion, however, the Court issued an order directing the Court of Appeals to transfer to this Court "all cases in which either a sentence of death or of life imprisonment has been imposed upon conviction of murder, and all pre-conviction appeals in murder cases, whether or not timely notice was given by the district...